Marcus v. Manhattan Beach Parks Corp. — 246 A.D. 331

Majority

p. 331

Beatrice Lee Marcus, Appellant, v. Manhattan Beach Parks Corp., Respondent.

First Department,

January 24, 1936.

p. 332

Benjamin Cohen of counsel [Herman S. Stern, attorney], for the appellant.

Edward A. Harmon of counsel [William E. Lowther, attorney], for the respondent.

From the plaintiff’s proof and the photographs in evidence, the jury could have found that the defect which caused the plaintiff’s fall was the result of gradual wear or deterioration and that consequently the defendant was chargeable with constructive notice of the condition.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.; Martin, P. J., and Dore, J., dissent and vote for affirmance.

Judgment dismissing the complaint at the close of plaintiff’s case reversed and a new trial ordered, with costs to the appellant to abide the event.